R. v. Tinglin, 2025 ONCJ 45

ONTARIO COURT OF JUSTICE

DATE: 2025-01-20
COURT FILE No: Toronto- 4810 998 23 48107496

BETWEEN:

His Majesty the King
— AND —
Martin Tinglin

Before Justice Katrina Mulligan
Heard on November 25, 2024
Reasons for Judgment released on January 20, 2025

A. Haran — counsel for the Crown
J. Hershberg — counsel for the accused Martin Tinglin

Section 11(b) and s. 24(1) Charter Ruling

Judge Katrina Mulligan:

1On June 5, 2023, Wayne Fevrier was involved in an altercation with a number of individuals. During that altercation, Mr. Fevrier was punched by a male. In retaliation, Mr. Fevrier armed himself with a machete and chased the male who punched him, apparently threatening to “chop him up.” While chasing that male, Mr. Fevrier was shot by another individual. The police were called and, while on scene, reviewed surveillance footage of the incident. As a result of their review, they came to believe that the Applicant, Martin Tinglin, is the individual who shot Mr. Fevrier.

2Mr. Tinglin was arrested on June 9, 2023. On June 10, 2023, an Information was sworn charging Mr. Tinglin with various firearm offences and one count of assault bodily harm.

3The Crown elected to proceed by indictment on all charges. Mr. Tinglin elected to be tried in the Ontario Court of Justice. On November 25, 2024, Mr. Tinglin brought an Application seeking a judicial stay of his charges as a remedy for a violation of his right to be tried without unreasonable delay as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. Oral submissions were made that day and the matter was adjourned to December 9, 2024, for a ruling. Given the fast-approaching trial date, on December 6, 2024, I notified the parties by email of my decision that Mr. Tinglin’s s. 11(b) Charter right had been infringed. On December 9, 2024, I directed a judicial stay of Mr. Tinglin’s charges pursuant to s. 24(1) therein to remedy that Charter violation. The reasons for that s. 11(b) finding are set out below.

The Law

4Section 11(b) of the Charter guarantees that any person charged with a criminal offence has the right to be tried within a reasonable time. The framework for assessing whether an accused’s right to a trial within a reasonable time has been infringed is found in the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27 (Jordan). Jordan established presumptive ceilings under which a trial must be completed. For trials that take place in the Ontario Court of Justice, that ceiling is 18 months. In the Superior Court of Justice, the ceiling is 30 months. The Court held that cases that extend beyond those established ceilings are presumptively unreasonably delayed and a stay of charges is the only means available to redress the constitutional infringement.

5The determination of whether an Applicant’s s. 11(b) Charter rights have been infringed requires a four-step analysis. First, the Court must calculate the total delay, defined as the delay between the swearing of the Information and the actual anticipated end of trial. Next, the Court must subtract any periods of time that were either waived by the defence or were caused solely or directly by the defence. The delay remaining is defined as the net delay. If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable unless the Crown can demonstrate that the case is either particularly complex or that exceptional or discrete circumstances arose that were reasonably unforeseeable or outside the Crown’s control. In order to satisfy this burden, the Crown must show that they took reasonable steps to circumvent and adapt to the problems before the delay exceeded the presumptive ceiling.

6Where the Applicant asserts that the delay at issue is below the presumptive ceiling, he bears the burden to establish, on the balance of probabilities, that the delay is unreasonable. To do so he must show that he took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that his case took markedly longer than it reasonably should have. I am mindful that the Supreme Court of Canada indicated that stays below the presumptive ceiling should only be granted in the clearest of cases.

Summary of Timelines

7The parties agree that the total delay between the swearing of the Information to the expected end of the trial is 18 months and 4 days or 551.5 days (18x30.417+4). They agree that delay is above the Jordan ceiling.

8The pertinent dates, as contained in the Applicant’s factum and supported by evidence comprised of court appearance transcripts, emails sent between the Applicant’s counsel, the assigned Crown and the Crown’s general email office address, and a lengthy affidavit from the Applicant’s paralegal, are highlighted below. The Crown accepts the facts as set out in the Applicant’s factum with two exceptions. Those exceptions pertain to the first Crown Pretrial (CPT) held November 8, 2023, and the extent of disclosure that still remains outstanding though it does agree that disclosure still remains incomplete as of the date of the application. As the Applicant fairly points out, there was no evidence filed by the Crown to support its version of the facts in these two areas and so I can give no weight to their assertions in this regard.

• June 10, 2023: Information sworn. Applicant’s first appearance, in custody, in Bail Court. Bail hearing not commenced. At the Applicant’s request the matter was adjourned to Case Management court on June 14, 2023.
• June 14, 2023: Applicant appears in Case Management court. Applicant’s counsel requests matter to be adjourned to July 13, 2023, to allow for disclosure.
• June 21, 2023: Applicant makes written request for disclosure.
• June 22, 2023: The complainant, Mr. Fevrier, conducts a videotaped interview with police.
• July 3, 2023: Applicant makes second written request for disclosure.
• July 4, 2023: Crown’s office responds to Applicant’s counsel advising that no one has been assigned to the Applicant’s file. An Assistant Crown Attorney (ACA) is assigned to Applicant’s file.
• July 12, 2023: The assigned Crown screens the Applicant’s file.
• July 13, 2023: Applicant’s second court appearance in Case Management court. Disclosure requested by Applicant. The ACA calling the list advises the Case Management Court and agent for the Applicant’s counsel that disclosure is now available. Agent for counsel requests a remand to August 17, 2023, to allow for review of disclosure and conduct of a CPT. Applicant’s counsel receives initial disclosure through the Ministry of the Attorney General’s electronic disclosure system. Neither Mr. Fevrier’s police video statement nor any surveillance footage are included therein.
• August 17, 2023: Applicant’s third court appearance. The Case Management Court is advised that substantive disclosure is still missing. Agent for counsel asks when missing “surveillance and other media files” will be available. The ACA calling the list has no update from the assigned Crown and advises Applicant’s counsel to contact same as will she. The Applicant requests to return on September 14, 2023.
• Applicant’s counsel emails the assigned Crown suggesting they “chat” regarding the missing items of disclosure. An “out of office message” is received in reply advising counsel that the assigned Crown is away until August 21, 2023. Applicant’s counsel does not receive a reply to his email.
• August 31, 2023: Applicant’s counsel is contacted by the “Myers Court Crown” asking whether the Applicant is proceeding with, or waiving, his 90 day detention review in the Superior Court of Justice (SCJ). Applicant’s detention review hearing date is scheduled for September 28, 2023, in the SCJ.
• September 14, 2023: Applicant’s 4th court appearance. The Case Management Court is advised that no further disclosure has been provided and that there has been no response from the assigned Crown to Applicant’s counsel’s emails. The ACA calling the list suggests a return date of October 12, 2023, and the Applicant is remanded thereto.
• September 18, 2023: Further disclosure provided to Applicant’s counsel via the Ministry’s electronic disclosure system. That disclosure does not contain Mr. Fevrier’s videotaped police statement nor other, previously requested, surveillance videos from the scene of the shooting.
• September 26, 2023: After a discussion between Applicant’s counsel and the Myers Court Crown, the latter locates and provides the former with three surveillance clips. Applicant’s counsel serves and files “Myers materials” with the SCJ. In those materials, Applicant’s counsel details the missing disclosure, its importance to the defence, the numerous attempts made to date to obtain same and the lack of any response to those attempts by the assigned Crown.
• Upon receipt of the Applicant’s Myers materials, the Myers Court Crown contacts the Officer in Charge (OIC) of the Applicant’s case. The OIC advises the Myers Court Crown that Mr. Fevrier’s statement was uploaded to the assigned Crown “months ago” but may not have been viewable by the latter due to some glitch. The Myers Court Crown obtains the statement from the OIC and then provides it directly to Applicant’s counsel. Applicant’s counsel advises the Myers Crown of his attempts to make contact with the assigned Crown and indicates that he has received no response from same. Four minutes after that conversation, the assigned Crown contacts Applicant’s counsel, by email, asking counsel to contact him to schedule a CPT. Applicant’s counsel does so, and a CPT is scheduled for October 3, 2023.
• September 28, 2023: The Applicant’s Myers hearing is conducted in the SCJ and the matter adjourned to October 3, 2023 for ruling.
• October 3, 2023: The Applicant is granted a surety Release with conditions including house arrest and electronic monitoring. In her reasons for release, the Court notes that a significant amount of disclosure is still outstanding despite the passage of 4 months since the Applicant’s arrest and detention.
• The CPT is held and Applicant’s counsel outlines what items of disclosure are missing and the effect those missing items have on the Applicant’s ability to assess the Crown’s case, consider his defence strategy and to make his election as to mode of trial. The assigned Crown advises that missing disclosure should be complete by early November agreeing that the missing items are necessary to conduct a meaningful Judicial Pretrial (JPT), as required given expected hearing time estimates, whether the matter proceeds by preliminary hearing or trial. A second CPT is scheduled for November 8, 2023.
• Applicant’s counsel sends the assigned Crown a follow up letter by email summarizing their CPT discussions and emphasizing why such disclosure is necessary to conduct a meaningful JPT.
• October 12, 2023: The assigned Crown contacts Applicant’s counsel by email seeking to change the time for the continuing CPT scheduled for November 8, 2023. Applicant’s counsel replies by email indicating that the assigned Crown may contact him directly by phone at any time that is convenient for him during the afternoon of November 8, 2023. He provides the assigned Crown with his direct phone line. In his reply he also reiterates that the missing disclosure is necessary to complete the CPT and to hold a meaningful JPT thereafter.
• Applicant’s 5th appearance. The Case Management Court is advised that disclosure is still outstanding and that a second CPT is scheduled for November 8, 2023. There is no update from the assigned Crown on the Crown’s Scheduling Crown Operations Prepared Electronically (SCOPE) internal messaging and case tracking system, as to the status of the missing disclosure or any steps taken to obtain same. The Applicant is remanded to November 17, 2023.
• November 8, 2023: Applicant’s counsel receives an email from the assigned Crown at approximately 4:00 p.m. indicating that he assumes counsel is otherwise occupied which is why counsel hasn’t contacted him. In that email he confirms that he is aware disclosure is still outstanding and suggests that a JPT be scheduled.
• Applicant responds 4 minutes later, by email, advising he is available and has been waiting for the assigned Crown’s call as previously arranged. He also reminds the assigned Crown that disclosure is still outstanding citing the fact that no new items have been received since the last CPT. Applicant’s counsel receives no reply email, no phone call nor other response from the assigned Crown.
• Applicant’s counsel resends the email request for outstanding disclosure originally sent October 13, 2023, following the first CPT. Applicant’s counsel does not receive a response to this email from the assigned Crown.
• November 16, 2023: Further disclosure received by Applicant’s counsel via the Ministry’s electronic disclosure system. None of the substantive items of missing disclosure requested is contained therein.
• November 17, 2023: Applicant’s 6th appearance. The Case Management Court is advised by an agent for Applicant’s counsel that substantive disclosure remains outstanding and that he has discussed same with the assigned Crown. The ACA calling the list references items disclosed the day prior and suggests that a JPT be scheduled. The date of December 15, 2023, is suggested by the ACA as a remand date and accepted by the Applicant.
• December 15, 2023: Applicant’s 7th appearance. The Case Management Court is advised that no further disclosure has been provided. There is no update in SCOPE from assigned Crown as to expected date for provision of disclosure. Applicant remanded to February 16, 2024.
• January 17, 2024: Applicant’s counsel sends another follow up letter to the assigned Crown regarding missing items of disclosure. Applicant’s counsel never receives a response to this email from the assigned Crown.
• February 16, 2024: Applicant’s 8th appearance. His request for missing disclosure is renewed. The ACA, through the Case Management Court, advises agent for Applicant’s counsel to follow up with assigned Crown regarding the missing disclosure and advises that they will send him a message to the same effect as well. The Court remands the Applicant to April 5, 2024.
• March 11, 2024: Applicant’s counsel sends another email to the assigned Crown regarding outstanding items of disclosure. The Applicant does not receive a response from the assigned Crown.
• March 20, 2024: Further disclosure provided to Applicant’s counsel via the Ministry’s electronic disclosure system. None of the disclosure provided contains the requested items agreed to be necessary for a substantive JPT.
• April 4, 2024: Further disclosure provided to Applicant’s counsel via the Ministry’s electronic disclosure system. One of the outstanding items previously requested by Applicant’s counsel and agreed to be substantive is contained therein. From the new disclosure provided, Applicant’s counsel first becomes aware that some of the on-scene police officers were wearing body worn cameras June 5, 2023.
• Applicant’s counsel sends an email to the assigned Crown reminding him of the crucial items still outstanding and requesting body worn camera footage from responding officers. Applicant’s counsel receives no response to this email from the assigned Crown.
• April 5, 2024: Applicant’s 8th appearance. The Case Management Court is again advised about missing disclosure. Applicant is remanded to May 17, 2024.
• May 10, 2024: Applicant’s counsel writes a detailed letter to assigned Crown seeking the crucial items of disclosure and reiterates that he would like to move the Applicant’s case along. Applicant’s counsel receives no response from the assigned Crown.
• May 17, 2024: Applicant’s 9th appearance. The missing disclosure is raised again by agent for Applicant’s counsel with the Case Management Court. Applicant adjourned to June 14, 2024.
• May 21, 2024: Applicant’s counsel sends a request for new items of disclosure and reminds the assigned Crown that other, crucial, items still remain outstanding. Applicant’s counsel receives no response to this email from the assigned Crown.
• June 14, 2024: Applicant’s 10th appearance. Agent for Applicant’s counsel advises The Case Management Court of continuing delays caused by incomplete disclosure. There is no update from the assigned Crown in SCOPE to assist the ACA calling the list in advising the Court as to the status of missing disclosure or the reason for the delay in providing same. The ACA recommends that the matter go into the Intensive Case Management Court. Applicant remanded to July 19, 2024.
• Assigned Crown telephones defense counsel to discuss missing disclosure items. A JPT is scheduled for June 27, 2024. Assigned Crown advises missing items of disclosure expected to be completed in the interim.
• June 26, 2024: Assigned JPT judge writes to parties advising that no JPT package has been received by him from the Crown’s office and requests same from assigned Crown in order to prepare for the JPT scheduled to take place the next day.
• Assigned Crown provides JPT Form and package to JPT judge.
• Applicant’s counsel forwards Applicant’s SCJ Release ruling dated October 3, 2023, to JPT judge.
• June 27, 2024: Parties attend for JPT. Assigned Crown advises Applicant’s counsel and the JPT judge that he understands that there are a number of witness statements still outstanding that need to be reviewed by the OIC before being disclosed. Crown also advises JPT judge that he does not challenge the Applicant’s assertion that the outstanding disclosure is fundamental to the Applicant’s ability to make an informed election. The parties agree to a continuing JPT date of July 23, 2024.
• After the JPT, Applicant’s counsel emails the assigned Crown seeking a variation of the Applicant’s Release conditions. The assigned Crown does not respond.
• July 19, 2024: Applicant’s 11th appearance. No update from assigned Crown in SCOPE with respect to missing witness statements discussed at JPT or missing disclosure first requested 12 months ago. No update about Applicant’s request for a variation of his Release conditions. Matter adjourned by the Intensive Case Management Court to August 16, 2024.
• 7 gigabytes of disclosure sent to Applicant’s counsel via the Ministry’s electronic disclosure system.
• July 22, 2024: Applicant’s counsel sends an email to the assigned Crown indicating the most recent batch of disclosure contains items already disclosed but for 3 new body worn camera videos from June 5, 2023, which Applicant’s counsel first became aware of April 5, 2024, and which he requested be provided that same day. Applicant’s counsel again requests missing items discussed at the JPT and reiterates the reasons therefore. Applicant’s counsel does not receive a reply from the assigned Crown.
• July 23, 2024: Continuing JPT held. Assigned Crown advises that there are, in fact, no further witness statements or surveillance clips to be disclosed and that he and the Applicant are in possession of all the substantive disclosure related to the case. Applicant indicates his election of OCJ-trial and a trial time estimate of 2 days is reached assuming both parties agree to certain concessions discussed during the JPT that reduce the trial time estimate from 5 days to 2 days.
• Applicant’s counsel sends another detailed disclosure request to the assigned Crown seeking disclosure items still outstanding.
• August 11, 2024: Applicant’s counsel sends another letter to the assigned Crown requesting a variation of the Applicant’s Release conditions. The variation requested is described by Applicant’s counsel as a way to streamline the eventual hearing as it would lead to certain admissions by counsel that, as discussed at the JPT, will reduce hearing time by days. Applicant’s counsel receives no response from the assigned Crown.
• August 16, 2024: Applicant’s 12th appearance. Applicant remanded to September 6, 2024. No update by assigned Crown in SCOPE regarding proposed Release variation. Judicial Intensive Case Management Court advised by Applicant’s counsel that trial dates will be secured from the Trial Coordinator in the interim.
• August 25, 2024: Assigned Crown contacts Applicant’s counsel to discuss trial concessions and proposed Release condition variation. Both parties agree that proper trial estimate, considering concessions now confirmed, is 2 days.
• August 26, 2024: A 2 day trial date is obtained from Trial Coordinator for October 17 and 18, 2024. Earlier trial dates of September 23 and 24, 2024, were offered by the Trial Coordinator but Applicant’s counsel was unavailable on those dates. A 2-day trial date was also offered in November. Counsel for the Applicant accepts the October dates conditionally, advising the assigned Crown and Trial Coordinator that he is “double booking” in that he has a commitment in the SCJ on those October dates but that he believes the SCJ trial dates may soon be vacated.
• August 29, 2024: Applicant’s Release is varied on consent.
• September 6, 2024: Applicant’s 13th appearance. Agent for Applicant’s counsel advises the Judicial Case Management Court that two trial dates have been obtained but that counsel is waiting to confirm that he will be available to proceed on those dates given his prior commitment in the SCJ. The Court remands the Applicant to September 13, 2024, and advises Applicant’s counsel to be in a position to set, or give back, the trial dates secured on or before the next court date.
• September 11, 2024: Applicant’s counsel writes to the assigned Crown to advise that his SCJ matter is proceeding on October 17 and 18, 2024, and that he is, therefore, unable to ask the Court at the Applicant’s next court appearance, to set those dates for the Applicant’s trial.
• September 13, 2024: Applicant’s 14th appearance. Applicant’s counsel advises the Judicial Intensive Case Management Court that new trial dates need to be obtained from the Trial Coordinator given his SCJ matter, previously scheduled, is in fact proceeding. Applicant adjourned to September 27, 2024, to secure new trial dates in the interim.
• September 24, 2024: January 2025 trial dates and an 11(b) Motion date obtained from Trial Coordinator’s office.
• September 27, 2024: Applicant’s 15th appearance. Applicant’s counsel advises the Judicial Intensive Case Management Court that January trial dates have been secured from the Trial Coordinator but that he would like to see if the November trial dates, earlier offered by the Trial Coordinator’s office, might still be or have again become, available before those January trial dates are actually set by the Court. Matter adjourned to October 18, 2024.
• Applicant’s counsel emails assigned Crown and Trial Coordinator to determine if earlier trial dates in November or December are available. The Trial Coordinator advises that the November dates are now gone but that December 12 and 13, 2024, have opened up. Those December dates are selected and set aside.
• October 18, 2024: Applicant’s 16th appearance. Trial dates of December 12 and 13, 2024, are set by the Intensive Case Management Court. The s. 11(b) hearing is set for November 25, 2024. Applicant remanded accordingly.
• November 25, 2024: s. 11(b) Motion heard and oral submissions made.
• December 9, 2024: Stay of charges entered and December 2024 trial dates vacated.

Analysis

9As I have described previously in such cases as R v. Brown [2018] O.J. No. 6031, and repeat herein, section 11(b) of the Canadian Charter of Rights and Freedoms guarantees to every person charged with a criminal offence the right to be tried within a reasonable time. This right is based on Canada’s expectation that its criminal justice system move efficiently and expeditiously being as the stakes for both accused persons and the community at large are incredibly high. A timely trial is essential to give effect to the presumption of innocence that underpins our judicial system. It ensures that an accused person spends as little time as possible in pretrial custody or on a release that places restrictions on their liberty. It helps to reduce the period during which a person alleged to be in conflict with their community’s values and mores is subject to the stigma and shame of its allegations and the anxiety of its processes. A trial without unreasonable delay helps guarantee that evidence is preserved, moves victims and their families towards a form of closure and minimizes the emotional and economic impact on individuals and the community. Not surprisingly, it is generally agreed that a criminal justice system that allows matters to unreasonably drag on risks being disrespected by the public it serves.

10As detailed in Jordan, the spirit contained within the Charter’s guarantees with respect of the right to a trial without unreasonable delay did not always translate into reality. Over time our system of criminal justice seemed to grow tolerant to delay. For the Supreme Court of Canada, Mr. Jordan’s case appears to have been somewhat of a tipping point.

11Speaking for the majority in Jordan, Mr. Justice Moldaver clearly signaled that a change of direction was required to the analytical framework governing the analysis of s. 11(b) motions moving forward. His Honour lamented the “culture of complacency” that had slowly taken hold in our criminal courts with respect to trial delay and, in effect, instructed that it be rooted out, exposed to light and addressed, ideally proactively at every turn. The goal, the Court was clear, is not perfection. That’s because the reality is that despite proper case management, even apparently straightforward trials can mushroom as a result of unforeseeable circumstances. Perfection, therefore, is an impossible standard to require of any party.

12As a result of Jordan, the concepts of justice and efficiency are no longer considered to be sparring opponents but as co-dependents instead. Criminal justice system participants are recast conceptually as “enablers recognizing that though each stakeholder’s role remains distinct all are expected to work together to reduce delay in the completion of all criminal trials”.

13Since it was recognized that no set number could magically give credence to the life expectancy of all, let alone any particular case, the assessment of any delay in question must also take into account “compelling case specific factors”. For that reason, the analytical framework in Jordan allows for the reality that even those accused persons whose trials are expected to be completed within or below the presumed ceiling might still suffer from unreasonable delays that violate s. 11(b), nonetheless. When Mr. Justice Moldaver stated in Jordan, “there is little reason to be satisfied with a presumptive ceiling of 18 and 30 months,” he made it clear that the country is tasked with stopping the delay before it exceeds the ceiling. The end goal, therefore, is not to have Courts redress delay that has already occurred but to motivate all stakeholders to consistently work to reduce the timelines anticipated during the trial’s progress from beginning to finish. As I understand from Jordan and the cases that have followed, rooting out and addressing delay should be imminent for all stakeholders.

14In examining Mr. Tinglin’s case it is overwhelmingly apparent that, for the most part, the only stakeholder who worked to minimize the delay in this matter was the Applicant. Applicant’s counsel wrote numerous requests for disclosure to the assigned Crown, made it clear why the requested disclosure was important, advised the Courts, at every appearance, of the issues causing delay, and tried to accommodate a trial date offered even though he had another commitment in the SCJ. The assigned Crown, on the other hand, rarely if ever responded to Applicant’s counsel’s emails and never updated SCOPE as to what steps were being taken to obtain missing items of substantive disclosure or the reasons for the delays in providing same. This is so even though the transcripts filed in support of this application show that his colleagues sent him emails asking him for updates too. Like the emails sent by the Applicant’s counsel, the assigned Crown appears to have remained silent despite entreaties from his colleagues as well. The assigned Crown appears to have never proactively spoken to the OIC of Mr. Tinglin’s case to share with her the Applicant’s disclosure requests and to determine who exactly had been interviewed and what disclosure actually consisted of. Based on what the assigned Crown advised the JPT judge at the first scheduled JPT, the OIC was either too busy to give proper attention to the actual status of Mr. Tinglin’s disclosure or, perhaps, there existed a severe miscommunication between her and the assigned Crown. In the end, I cannot tell whether the problems experienced by the Applicant were the result of complacency, neglect or an under resourced Crown office or police force.

15Given the assigned Crown’s actions, or more accurately, his inaction in this case, the Crown’s approach to this Application is somewhat curious. The charges against Mr. Tinglin are serious. Mr. Fevrier was shot and apparently, severely injured. On the evidence before me, the trajectory of this case falls well below the standards normally associated with the Toronto Crown Attorney’s Office. From the evidence tendered by the Applicant, it appears that the assigned Crown and the OIC never engaged in meaningful discussions about the case and the disclosure until, perhaps, sometime proximate to the second, scheduled JPT. I say that as it appears that it was only then that the assigned Crown came to understand the true scope of his case and the actual evidence gathered by the police in the course of the Applicant’s investigation. Of course, this is merely speculation being as the Crown filed no evidence whatsoever in support of their assertion that Mr. Tinglin’s s. 11(b) Charter rights were not violated. No affidavit from the assigned Crown or other ACA, no affidavit from the OIC, and no materials from their Case Management Coordinator which might have explained the history of this case. There may well have been an explanation for the reasons for the delay experienced. That explanation may have allowed me to situate this case and its delays in light of “compelling case specific factors” or otherwise. However, without some evidence, that was all but impossible.

16The Crown, made instead, gnomic submissions about the Applicant failing to set a JPT date in a timely fashion in order to move things along thus causing delay. Considering the fact that, as of the first JPT held June 27, 2024, it was the assigned Crown’s opinion, incorrectly held as it turned out, that substantial disclosure was still missing and that the missing items were crucial to the Applicant’s ability to make an informed election as to mode of trial, the Crown’s submissions on this application were completely contradicted by the fulsome evidence that was tendered by the Applicant. The Crown’s submissions were also contradicted by the JPT judge’s entry on the Applicant’s JPT form. Under the pre-printed heading, “Missing Disclosure/Action Required”, the JPT judge wrote, “June 27-Lots still outstanding, not enough to make an election, in particular, video statements of all main witnesses, (assigned Crown) says they will be ready soon.” Though we now know there really was only one central witness, faced with the JPT judge’s notation of the reasons provided to him for the parties’ inability to make informed decisions, the Crown’s oral and written submissions in this regard are puzzling. In fact, what the Crown did at this Application was to advance a position opposite to that held and voiced by the assigned Crown to the JPT judge at the relevant time. To put it mildly, it is an interesting revision of history. The judge’s note made at the continuing JPT on July 23, 2024, indicates that Applicant’s counsel “received only 3 body worn camera files” but that the assigned Crown “is now of the opinion that substantive disclosure is complete.” What that leads me to find is that as of July 23, 2024, the assigned Crown, finally, understood his case and the extent of the evidence in support of same. It appears that there were no further witness statements needing review or redaction and no further surveillance images to be disclosed as he had previously assumed, had been advised, surmised or however it was that he came to that mistaken conclusion. As such I find that the investigation and substantive missing items of disclosure were complete as of the date of Mr. Fevrier’s video statement to police provided on June 22, 2023. Indeed, the JPT form, not completed until 1 year later on July 23, 2024, lists a single Crown witness for the trial, that being Mr. Fevrier.

17To add further to the troubling history of the Applicant’s case I note that those presiding in Case Management courts did nothing to “expose to the light” and “wrestle down” the delays identified each time Mr. Tinglin’s case was addressed therein. In fact, the sole comment about delayed disclosure by a justice presiding in a Case Management court was made on June 14, 2024, when, after being advised of disclosure delay entering into its 11th month, the Court declared that the issue should be dealt with “in the background with the Crown’s office”. The Justice made it clear that he had no time for the issue the Applicant identified as the reason for the delays to date. Clearly this is the antithesis of Jordan’s clarion call to counsel and the Courts to be proactive in spotting and slaying delay. The sad truth, based on the evidence filed before me in this hearing, is that those who presided in Case Management courts did not a single thing to actually and actively case manage Mr. Tinglin’s case. This does not bode well for the Ontario Court of Justice in the sense that Case Management courts are so named as they are supposed to be a fillip for actively managing criminal cases. In other words, there was nothing done by the Case Management Courts, despite their moniker, to consistently work to reduce the timelines anticipated, and actually occurring before them, during the Applicant’s trial’s progress from beginning to end.

18To be fair to the jurists presiding in Case Management courts at the Ontario Court of Justice-Toronto, their lists are often so long that it is next to impossible, as I understand it, to deal with matters substantively without stretching the court day well into the evening. In fact, I understand a “triage system” was being used, and may still be being employed, to get through the significant number of criminal cases that were and are on the Case Management Courts’ dockets each day. Though I have no clear understanding of how ‘triaging” works in Case Management courts as I have never presided in those courts, I understand that matters addressed via Zoom appearances are first discussed by counsel and an ACA in a separate, digital, break-out room. The results are then summarized to the Justice presiding in the actual court by one of the parties to the triage conversation or by the ACA assigned to that court. I can only guess this is what occurred during the Applicant’s court appearance on October 12, 2023. A review of the transcript filed shows that there was no Crown input to the Court during this hearing. The remand was presented to the Court as a sort of “fait accompli” as opposed to a substantive weighing and judicial consideration of the reasons for the request to adjourn Mr. Tinglin’s case yet again. Once again, I have no evidence and no experience in this area. I do, however, preside in this jurisdiction and am well aware of the demands placed on justices in high volume Case Management courts.

19It appears that the high number of cases in Judicial Intensive Case Management courts is evidence of the inability of Justices to actively and effectively case manage matters when presiding in overwhelmed Case Management courts, as is apparent in Mr. Tinglin’s case. Indeed, the Intensive Judicial Case Management court at the OCJ-Toronto itself appears to be prone to the same fate. At present, it seems as though the Judicial Intensive Case Management court is at risk of simply becoming another form of institutionalized delay at the OCJ-Toronto. Perhaps the Chief of the Ontario Court of Justice’s recent Jordan Compliant Trial Scheduling Directive will eventually address this issue. I can say for absolute certainty that Courts overwhelmed by lengthy dockets, whether those be in so called Case Management or Intensive Judicial Case Management courts, are definitely not in a position to do as Jordan instructs them to do.

Apportioning Delay

20In assessing the delay in the Applicant’s case, I categorically reject the Crown’s submission that the Applicant should have insisted on setting a JPT once provided with Mr. Fevrier’s statement and video surveillance clips by the Meyer’s Court Crown on September 26, 2023. Since everyone was of the belief that substantive disclosure was still outstanding, the setting of a Crown pretrial date was, itself, optimistic. As Her Honour stated in her judgement releasing the Applicant after his 90-day detention review, “It is not possible to identify the shooter from (the surveillance) video. It is possible to pick out some identifying features of the clothing worn by the shooter. The police have security video of Mr. Tinglin inside the apartment building several hours before the shooting. He appears to be wearing similar clothing to the shooter. There appear to be several problems with the way the police asked Mr. Fevrier to identify a photograph of the shooter. Nonetheless, Mr. Fevrier told the police the street name of the person who shot him, which at least one officer recognized as Mr. Tinglin’s street name. Even if the Crown can prove Mr. Tinglin was the shooter, he appears to have a viable defence.” Her Honour then went on to identify the numerous defences Mr. Tinglin might put forward based on the evidence disclosed at that time.

21Given Her Honour’s expressed opinion of the case, the revelation by the assigned Crown thereafter that further witness statements and surveillance videos existed but had yet to be disclosed, would certainly impact how the Applicant might approach his options for trial. A preliminary hearing might be the best option for the Applicant to explore the evidence of these further witnesses as it might relate to self defence or defence of others as well as the intent of Mr. Tinglin, based on that circumstantial evidence, for shooting Mr. Fevrier assuming the Crown could prove that he was, in fact the shooter. Why the assigned Crown advised that there were “numerous witness statements that needed to be redacted and disclosed” at the first scheduled JPT, we will never know. That “fact” however, effectively extinguished any hope that accurate hearing time estimates could be achieved given the Applicant’s inability to make his election as to mode of trial based on the information he had at the time from the assigned Crown. The fact is, there is absolutely no evidence before me that a JPT could have been completed any earlier than it actually was in the circumstances as understood by all parties, as erroneous as that understanding was. Though no Court mentioned the Jordan-Compliant Trial Scheduling Directive which came into effect November 1, 2023, at any point as the Applicant’s case slowly wended its way to trial, which in and of itself is surprising, there was no argument made that, in this situation, the Directive’s application could have reduced the delays experienced in this case.

22With respect to the unavailability of the Applicant’s lawyer for the earlier trial dates offered I note as follows. On August 26, 2024, dates of September 23 and 24, 2024, were offered as trial dates. Those dates were less than 30 days away and so it is not surprising that Applicant’s counsel was unavailable for trial on such short notice. Even if he were, there would not have been enough time to schedule the s. 11(b) motion which, by the Ontario Court of Justice Practice Direction relating to Delay Applications such as this, requires that they must be heard at least 4 months prior to the trial date and that all of Applicant’s motion materials must be served and filed 30 days before the scheduled motion date. Even if that Direction were bypassed and time limitations waived for service and filing of the motion and response by both parties, I cannot fathom how the motion materials could be gathered, served and filed by the defence, the response filed by the Crown and all materials reviewed by the judge assigned to hear the s. 11(b) motion on such short timelines.

23That the October dates were accepted conditionally is yet further evidence that the Applicant was doing everything possible to move the case along. As it turned out, his gamble failed. As such he was required to select new trial dates. By the time he was able to confirm that the October trial dates wouldn’t work, the November dates he was initially offered by the Trial Coordinator were no longer available. He accepted the next trial dates offered which were the January 2025 dates. However, consistent with the Applicant’s sustained efforts to reduce delay, he made another attempt to obtain earlier dates, aware of the fluctuating availability of trial time given the constant ebb and flow trial availability due to resolution and collapse of matters set for trial. Because of his concerted efforts, he obtained the earlier trial dates of December 12 and 13, 2024, with the Charter motion set for November 25, 2024.

24Based on the above and applying the Jordan framework in its most literal reading, I find that the Applicant is responsible for the delay between October 18, 2024, and December 13, 2024, that being some 56 days. Subtracting defence delay from the total delay agreed by both parties to be 18 months and 4 days or 551.5 days, results in a net delay of 495.5 days or 16.3 months. Assuming these calculations to be correct, the delay in the Applicant’s case is below the presumptive ceiling of 18 months for a trial in the Ontario Court of Justice.

25I hesitate at this point only to point out that I am not entirely convinced that the Applicant is responsible for any delay in this case. I say that as it appears that, given the Jordan-Compliant Scheduling Directive, at the time the Applicant was finally in a position to set his trial date, the Trial Coordinator was obliged by that Directive to find the parties dates that were within the 18-month Jordan ceiling. Had the parties been in a position to have their JPT and set trial dates in 2023, as I find they should have been, I suspect that the trial dates offered at that point in time would have been more plentiful than those offered at a time when the 18-month ceiling was effectively closing. In any event, a finding that the net delay was above the Jordan ceiling would have also resulted in a stay.

26Assuming that the net delay is below the Jordan ceiling, I am satisfied that the Applicant has overwhelmingly shown that he took meaningful and sustained steps to expedite the entirety of the proceedings and that the case took markedly longer than it reasonably should have. Based on the evidence before me, I find that a CPT and JPT could have taken place before the end of 2023, and a two-day trial completed in late 2023 or, at very least, early 2024. This one witness case is not complex by any means and neither party argued it was. The Disposition Rate Statistics for Toronto, available on the Ontario Court of Justice’s public website and filed as part of the Applicant’s motion, demonstrate that cases similar to that of the Applicant’s, i.e. charges alleging “Major Assaults”, “Other Crimes Against Persons” and/or “Weapons Offences,” took an average of between 209-265 days to complete in the OCJ-Toronto during the relevant time frame. These statistics are in line with my experience as an OCJ Judge presiding in Toronto. As such, I find that the Applicant case has taken markedly longer than it should have.

27Given the above, I directed a stay of Mr. Tinglin’s charges.

[28] Released: January 20, 2025

Signed: Justice Katrina Mulligan